tv [untitled] November 25, 2010 6:30am-7:00am PST
back on the 15th. commissioner fung: would you put it on the oversight -- on the overhead? >> we have the return receipt that shows it was received by ike's place, and i believe it was signed by an employee. with that, i will answer any questions. vice president goh: it is the department's position that the 15-day period ran may 5, or something? >> it was between july 13 and july 28, the 15-day period that the permit holder could have requested appeal on the notice of violation. vice president goh: thank you. president peterson: can we try to see the signature line again? >> sure. can i have the overhead, please? that is what we had received. president peterson: thank you.
>> it is my understanding ike's is now operating at a new location. i think commissioner garcia pip question of the use of the jurisdiction request -- i see nothing beyond if this board were to take jurisdiction and reduce the penalties. but i do not see how one could find it was not in violation. it was clearly in violation at the time. >> is there any public comment on this item? seeing none, commissioners, the matter is submitted. commissioner garcia: the reason i might be willing to -- that i personally would be willing to grant jurisdiction has to do with the fact that in addition to other considerations we have a letter from the office of economic work force and development. we just got it. basically, what it says is that this operation was very popular.
and when all these problems arose, they were overwhelmed with paperwork. i want to make it clear if this board were to vote for that, the very best we could do would be to reduce the fine. i do not know what the requestor wants beyond that, but if that is what they want, i would consider it reasonable. i would consider it reasonable to entertain arguments having to do with that. president peterson: could we address reduction of fines tonight, or would you have to reschedule? >> the matter before you is simply whether you want to entertain an appeal. commissioner garcia: in the absence of any other comment, i would so move, and we will see where that goes. >> you are motioning to grant jurisdiction? commissioner garcia: yes, thank
you. commissioner fung: i do have a comment, a little bit late. let it be noted that i think noticed was appropriate -- notice was appropriate. i am willing to vote with granting only as a matter of potential equity, given the fact that the fines are so great. >> any other commissioner comments? >> on that motion from commissioner garcia? commissioner fung: aye. vice president goh: aye. president peterson: aye. commissioner hwang: aye. >> thank you. the boat is 5-0. jurisdiction is granted and a
new 15-day appeal period shall be opened. president peterson: i am wondering if you have been able to confirm whether 421 is available? >> it is available. president peterson: thank you. just to let people know, we have to keep the aisles clear. if you cannot find a seat, we have to ask you to move to the overflow room, room 421, just down the hall. if you could call ite 5m 5a, please. >> : eye toa an fived -- calling items 5a and 5b. the appellants are the cane and tutoring centers service and the chinese gospel church -- are the canaan tutoring centers
service and the chinese gospel church. it is protesting the issuance on september 15 of a permit to alter a building to a medical cannabis dispensary in a former chiropractor's office. it is application no. 2009/ 12/03/2572. president peterson: we are combining these into one case. we will start with whoever is here to represent caanan tutoring. please step forward. >> go ahead. >> my name is ross moody. i am here to speak on behalf of caanan tutoring service.
i am a 20-year resident. i have three kids in public school. i married a native. i was lucky enough to do that. it is working out great. i want to talk about what this appeal is not about. what this appeal is not about is the pros and cons of medical marijuana, medical cannabis. i voted for proposition 215 back in the day. it has been the lot in the state for 20 years. i personally support the right of people to use medical cannabis to assist them in staying healthy. but what this appeal is about is san francisco's policy of where to locate medical cannabis dispensaries. the board of supervisors has seen fit to protect a zone around a medical cannabis dispensary. it really relates to the secondary market for marijuana. marijuana makes medicine, and i
am not here to dispute that. but so it does toxic content. you can get a script for that at the walgreen's, walk for blocks, and sell it in the tenderloin. we have to address the reality of the fact that these substances can be used for medicine and also for recreational purposes. what is out there in san francisco? the board of supervisors has enacted planning code section 790141. this says you cannot open a medical cannabis dispensary within 1,000 feet of a school, a recreation building which primarily serves miners, or a public facility which primarily serves minors. they have created a safe zone where you look for these businesses that primarily serve minors. what happened here? in this case, the process of enforcing and implementing section 790141 completely broke
down. the planning department looked at the businesses and entities in 1,000 feet. it analyzed a code section which did not exist. it failed to address public safety concerns of the police, including a specific request by the captain of taraval station that the permit be denied. that came in the report. we received a letter from taraval station. the process itself, where many people who came to -- their first experience to government, to accessing their government, people who do not speak english came to the condition meeting and receive inadequate translation services. it was a one-way street for these people. they could stand up for public comment, but there were not able to hear what the commissioners were saying. that was not translated to them. let me go into this a little bit
more specifically. first, the grace center is around the corner from this site. it has been there from 1983. it is a licensed day care. by definition, it is a public facility that primarily serve as those under the age of 18. there is such a facility within 1,000 feet. you cannot site and mcd there. planning completely missed this. it is not even mentioned in their report. this is the easiest way to reverse this appealed -- excuse me -- to reverse this permit. you cannot grant it due to the existence of this entity there. secondly, the tutoring centers and the dance school -- those are right within 1,000 feet. although the petitioner, or the permit holder, has said he spent 15 months looking for the site for this, he picked a spot next
to a church, two doors down from a tutoring center, across the street from a child dance studio, and two blocks from another infant center as well. if you look at the definition of recreation that has been used by the board, by the planning department, they talk about counseling, recreation, cultural activities. are these things not occurring at a dance school or a tutoring facility? i submit to you that they are. if you believe that to be true, you should reverse this permit. i talked about public safety a little bit, and i implore you to read the letter of captain schmitt. this is not an anti-canada's rant. it talks about the nature of the neighborhood, the number of schools, the number of parks,
the number of kids who go to the 7-eleven next to the site every day. it suggests there is going to be a secondary market out there as a result of opening this facility. how often do you think planning gets a letter from the police that says, "please do not issue the permit"? i watch the san francisco government channel all the time. i have never seen it. i would like to talk about the other breakdown of the problem, which is that there are so many problems with that report. it cites a subdivision of the code that does not exist. what does that tell us? it tells us that no one even opened the code. if you open the code and look for subdivision f and it is not there, you do not cite it. maybe you drop a footnote that says, "i think there is a typo,"
but you do not say that all the requirements in subdivision f are met. what does this do to public participation? if you do not want this facility open, how do you answer something that does not exist? how do you read the report and say "i disagree," when you cannot even look at it yourself? this is a very serious problem. we take problems very seriously in san francisco, and for good reason. this is a place where we have open government, where we have a very rigorous planning code. and we expect our public servants to do a good job in translating it, in analyzing it, and giving us the opportunity to company and be heard. and in this case, it completely fell apart. i asked you on that basis to reverse this permit. [applause]
>> thank you. commissioners? vice president goh: i have a question for mr. moody. you mentioned grace infant center around the corner. how many children are cared for their? >> i believe there are 13 children cared for theire. vice president goh: thank you. >> i would ask folks who are standing along the wall to please take a seat or move into the overflow room. we have to abide by fire requirements. if you have a seat next to you, please raise your hand so someone can find it. thank you very much. we will now here for mr. davis from chinese gospel church. >> good evening. my name is russell davis. i represent the chinese gospel
church. in an effort to avoid repeating what is in the briefs, i would like to begin with anecdotal evidence. we as a society keep telling our kids to just say no to drugs. we do it on tv. we do it on radio. we do it on the internet, social media, facebook, etc. we need to reconcile this desire to keep kids away from drugs with the proliferation of mcds in the city and county of san francisco. printing a license in this case is inconsistent with the message we tell our kids about drugs. this contradiction should be readily apparent. my suggestion is that the balance of equities fall on the side of the children and to revoke this particular permit. with that in mind, i will try not to repeat the points made by mr. moody. i do want to say that i agree with him that reference
organizations, meaning think- tank learning, grace infant day care, and others, are literally covered by the law at issue. any mcd cannot be legally permitted within 1,000 feet of these organizations. the code defines recreational buildings to include uses that provide social, fraternal, counseling, or recreational services to the community. it includes private non- commercial lodges, meeting halls, recreation buildings, or community facilities not publicly owned. without a doubt, the reference organizations primarily serve children under 18 years of age. there is no requirement in the planning code that they be state license. my client, the chinese gospel church, meets this issue. it provides social counseling and recreation gathering services to the sunset
community. it is private. it is a non-commercial facility where people meet regularly. it is open to the community and not publicly owned. these facts are undisputed. they are not controverted. hence, the permit to operate the mcd in that particular location should be revoked or should not have been granted in the first instance. in this regard i can only characterize the planning commission's brief filed in support of the permit as being otherworldly. it attempts to pigeonhole various organizations into categories that exclude them from the explicit protection given them under the planning code. yet it utterly fails to recognize or argue against the fact that these licensed organizations serve children under 18 years of age. however, even if the board -- this board things that they are not -- the organizations are not literally covered by the law,
they certainly come within the spirit and m bit of the law. -- ambit of the law. the comply substantially with the law, and that should be sufficient. moving on, much has been said about serving the needs of the chronically sick in the sunset district. however, there is no evidence before the board of a number of truly sick people needing and = mcd in the sunset district. anecdotally, it is common knowledge that anyone can get a prescription for marijuana in this city. the convenience of those people should not concern the sport. as for the truly sick, there is no reason whatsoever why they cannot get their drugs delivered. they could simply take the l or the k downtown to ocean avenue
where there are already too licensed -- two licenced mcds. the idea that we need another in a sunset district -- in the sunset district is a canard. the people who claim they need the drugs are already getting them. before discussing any substantial issues of would like to bring up a couple of procedural matters. one was mentioned by mr. moody. the permit was initially approved under a non-existent law. declarations that were attached , whatever you wish to call it, were not attested to properly and should therefore be annoyed -- be ignored. the proposition fails to regard our argument on the spirit of the law. therefore, my view is they have waived their argument. furthermore, the transcripts that were provided were edited. therefore, they are not true and accurate representation of the
hearing. therefore, they should be ignored. with regard to some of the cases that we cited, i do not want to beat this to death, but the cases stand for the proposition that it makes sense to restrict businesses that are intrinsic draws for children. that would certainly include by clients. segregating adult businesses from residential areas and schools and placing them in locations where they do not affect the moral climate of the community decreases the problems of parents of neighborhood children, littering of paraphernalia, loitering, and visual blight. for these reasons, my client is simply asking this board to revoke the permit that has been granted. i will take questions, and i
would like to reserve any additional time that i have not used for rebuttal. >> i am sorry. that is not allowed. >> ok. i can take questions. none? >> thank you. please hold your applause. no applause. before we move on, i understand the headset's provided for translation have not been working properly. if you come back, we can try to rearrange the room a little and try to provide translation. >> [speaking chinese] president peterson: i would ask
if people might be able to move their seating arrangement a little bit to accommodate, we are going to try to cluster folks who need translation services on one side of the room. we would be very appreciative if you could help accommodate changes in seeding. -- seeking -- seating. i will take this opportunity to express appreciation for the volunteer translators here this evening. we very much appreciate your assistance. mr. saint-pierre, when you are ready, you can step forward. we will be ready for you in a moment.
>> i would like mr. sanchez to speak before myself since he is the actual respondent. president peterson: he will speak after you. >> ms. leong, are we ready? president peterson: go ahead. you have 40 minutes. >> good evening, ladies and gentlemen of the board. thank you for the time this evening. what i would like to say really boils down to this. the appellants are here trying to take a second bite at the apple. what do i mean by that? every single issue that was raised here this evening was raised at the planning commission, heard at length at the planning commission, and decided upon by the planning commission. the issues raised tonight are nothing new. that are in fact reiteration of
the very same issues that the planning commission listened to, analyzed, and did not find merit. what they are trying to do through this is effectively rehear the exact same issues presented, and reanalyze and take away the discretion given to the planning commission. the planning commission is vested with the original authority to decide these matters. the board of appeals is to review and make sure the planning commission did not abuse this discretion. i am standing before you, let you know that the discretionary review which i believe mr. sanchez will respect and speak to you about, speaks to each and every concern, including the police report brought up by the appellants. effectively, the appellants do
not understand the municipal code. each of the clients as well as the other child care-related entities cited by them do not qualify under the applicable statute. section 1789.50 is qualified, and let me read it directly into the record. the public to private, profit, or nonprofit use, including -- excluding hospitals or medical centers, which meets the provisions of section 3045. that refers to items that qualify on the master plan. it does not cover any of the institutions referred to by the appellant. again, the concerns raised by the appellant regarding child safety, regarding holistic resale, regarding any of the other allegations being made, or
specifically addressed in considered by the commissioners. -- were specifically addressed and considered by the commissioners. as you can see in the packet submitted to you during the appeal, this is simply a building permit appeal. as part of the discretionary review process, a bunch are placed in front of the mcd before they can operate. each of these hurdles was addressed by the bay area health network. each of those hurdles was successfully navigated, bringing it all the way to the matter here before you. at this time, there is no track record of mr. schoepp operating a medical cannabis dispensary in san francisco. his permit is still pending. there has been a time for him to show to the community that he would be a valuable member, and demonstrate what type and what
means of an actual dispensary he would run. the other issue, in terms of concerns regarding language and the translation services provided during the planning commission hearings -- as much as i appreciate the appellants, what they are bringing up, i think that is frankly in the situation better addressed with the sunshine ordinance task force, and not whether the language translation was provided at the commission hearing. in terms of captain schmidt's letter, it was discussed at length during the planning commission hearing. i have copies of the april 28, 2010 planning commission hearing that i am happy to provide to the entire board. this addresses -- these are the minutes of the meeting. there are also truncated excerpt
from the actual meeting, reflecting the comments of the commissioners as well as the police captain. frankly, the primary issue there is that the police captain was raising concerns regarding illegal operations in the sunset district, which has been a concern. that is not the issue before you. we are talking about a medical cannabis dispensary, not a grow operation in the sunset. i would like to reserve a few minutes for mr. schoepp to address you. before, i would like to address questions by the actual board. commissioner garcia: i have a question. what citation could you give me that states that our duty is only to review the actions of the planning commission for error of use of authority? >> i do not have a direct quotation on that. i did quite a bit of research in terms of your prior decisions.
essentially, i see that the -- as the point is made in my argument -- that this is analogous to an appellate court. i am not saying it is the exact same situation, but looking at the dynamic before you, i think the best way you can characterize the situation is an appellate review of the underlying decision. in that situation, and abuse of discretion standard would apply to the process. i will agree with mr. garcia that in terms of the direct on- point citation, no. but through parallel authority as well as other items that suggest what should be the standard -- it is a little bit of a difficult situation, but i think that may be the appropriate standard. commissioner garcia: that is the standard. that is the standard when we review something by the zoning administrator. the authority of this board goes
way beyond the same considerations of the planning commission. they are not necessarily the same considerations this board would have. we can apply different standards in rendering decisions. >> i understand. commissioner garcia: thank you. >> any other questions from the board? before a turn it over, the other thing that i will make a point to clarify is that this evening we did not want a repeat of the planning commission hearing. the planning commission hearing lasted well into 3:00 in the morning. we would like to do this evening -- we want to truncate our presentation and only bring the members directly related to the area compassion health networks to the board. we did not request or supporters to come here and address the board for the convenience of the board as well as the fact that we feel that the community support was adequately reflected during the actual